Standing Committee B

[Mr. Derek Conwayin the Chair]

Derek Conway: Good morning. It is a warm day, so if anyone wishes to remove their jacket, it will of course be perfectly in order.
I remind the Committee that there is a money resolution in connection with the Bill, and copies are available in the room. I remind members that adequate notice should be given of amendments. As a general rule my co-Chairman, Eric Martlew, and I do not intend to call starred amendments. Will all colleagues ensure that their mobile phones, pagers and so on are turned off, or at least on silent mode, during our sittings?

Tim Loughton: On a point of order, Mr. Conway. I was perhaps being presumptuous, but was it in order for us to remove clothing, given the conditions?

Derek Conway: I made a ruling in a Committee last week that Bermuda shorts and flip-flops remained banned. That will continue. Perhaps the blinds should come down lower as the day progresses, but we shall see how Mr. Martlew feels about it this afternoon.

Parmjit Dhanda: I beg to move,
That—
(1) during proceedings on the Safeguarding Vulnerable Groups Bill [Lords], in addition to its first meeting at 10.30 a.m. on Tuesday 11th July, the Standing Committee shall meet at:
(a) 4.00 p.m. on Tuesday 11th July,
(b) 9.00 a.m. and 1.00 p.m. on Thursday 13th July;
(2) the Bill be considered in the following order, namely, Clause 1, Schedule 1, Clause 2, Schedule 2, Clauses 3 to 5, Schedule 3, Clauses 6 to 25, Schedule 4, Clauses 26 to 47, Schedules 5 and 6, Clauses 48 to 51, new Clauses, new Schedules, remaining proceedings on the Bill;
(3) proceedings on the Bill shall (so far as not previously concluded) be brought to a conclusion at 4.00 p.m. on Thursday 13th July.
I am delighted to serve under your chairmanship in my first Committee as Minister, Mr. Conway. I welcome Members from all sides. Many of us have met before on a number of occasions, even though I have not been in place for long, including not long ago on the Children and Adoption Bill.
I look forward to detailed scrutiny of what I accept is a technical and complex Bill. It has had good scrutiny in the Lords, and I am delighted that the finest Whips known to Parliament, on both sides of the House, have struck a good deal on the scrutiny that we may give it this week. I look forward to engaging with both Opposition parties and with Government Back Benchers today and on Thursday.
I shall not hold up events further as there is a lot to get through.

Maria Miller: It is indeed a pleasure to serve under your chairmanship, Mr. Conway, as it will be to do so under Mr. Martlew.
The Opposition have a strong team to ensure, as the Minister put it, that we have a thorough review of the Bill, given its technicalities and complexities. I am particularly pleased to have on the Conservative Benches my hon. Friend the Member for Reading, East (Mr. Wilson), who with his experience and background in education will bring a great deal to the debate; my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton), whose expertise in matters to do with children and health are well known to many in the Committee; and our Whip, my hon. Friend the Member for Bexleyheath and Crayford (Mr. Evennett), who also has great experience that will add to our debate in the next few days. We will be joined this afternoon by my hon. Friend the Member for St. Albans (Anne Main), who is otherwise engaged this morning. Her background in local government will be of particular use.
No legislation can guarantee the safety of children or vulnerable adults. The Bill covers only one part of the 31 recommendations made by Bichard. That means that while examining it, we must consider how to engender a broader culture of vigilance and support. We must also ensure that we touch on other progress being made as a result of the Bichard report. I am sure that the Minister will want to ensure that the Committee is fully briefed, particularly on the police information systems so critical to ensuring that the Bichard recommendations are fully realised. Data and systems are not the answer; they are simply part of the answer, and we must keep that uppermost in our minds.
The Bill has benefited from a great deal of debate in the House of Lords, and the amendments passed there will be well known to Committee members. They relate to better read-across between the two lists and to malicious allegations. However, the Bill will benefit from further consideration. The focus of the amendments tabled by the official Opposition is the role of the independent barring board, its processes and practices and what we expect of it.
The other area critical to the Bill’s success concerns the need to ensure that there is clarity on the thresholds used when action is to be taken. We shall raise other issues, too, including the use of secondary legislation, which is extensive in the Bill, overseas workers, and exemptions for certain groups. A number of other issues will be drawn out from our amendments and dealt with in detail.
Many of the issues that we have raised through amendments were raised in two specific consultations: the post-Bichard consultation, held last year, and the Department for Education and Skills consultation, which reported in April. The Minister is relatively new to his post but, as he pointed out, he has been thrown in at the deep end and has already debated two Bills with us so far. I will perhaps challenge him on why more heed has not been paid to the feedback that he and his colleagues had from those consultation processes, because if we ask experts their opinion but choose not to take their advice, we risk undermining their trust, their interest and perhaps their help in future. I would be interested in the Minister’s thoughts on that.
I said on Second Reading that the systems that we have in place have too often been unreliable, and research suggests that that statement is correct. We are all aware of the Ofsted report that came out around the time of Second Reading, which found that 90 per cent. of schools were ignoring the scheme to stop paedophiles working as supply teachers. That is coupled with the Commission for Social Care Inspection report, which showed a widespread failure to use safe vetting procedures that are already in place; 40 per cent. of children’s homes were not using those procedures. It is our responsibility today to ensure that we weave out of the Bill the opaqueness that is in it and that we add clarity. We hope that we will succeed in doing so through the amendments tabled.

Annette Brooke: On behalf of my hon. Friend the Member for Brent, East (Sarah Teather) and myself, I welcome the Minister. I imagine that this is the first Committee in which he has been in control of the proceedings. I am sure that it will be a pleasure to serve under your chairmanship, Mr. Conway, and that of Mr. Martlew. This is the first time that I have served on a Committee with you. We look forward to working with the hon. Member for Basingstoke (Mrs. Miller) and her team. We have been engaged with so many children’s Bills this year that we have worked together quite a lot.
I echo what the hon. Lady said about the Bill’s complexity and its technical aspects. Inevitably, we have very carefully to consider definitions of words, because it is so important that we get the Bill right. It will also be incredibly important that we end up with a Bill whose demands and requirements can be communicated clearly to all those whom it affects. That theme should flow through all our discussions: we need to think about how the details of the Bill will be communicated.
Some of our amendments are probing amendments. Even though a great deal of work was done in the other place, we would like to be absolutely clear that the various definitions of activities contain no loopholes. It is most important to get the Bill right, and I hope that every member of the Committee will make a full contribution.
I was privileged to serve on the Committee that considered the Sexual Offences Act 2003, and we had excellent cross-party working. One went home at the weekend thinking that one was really doing a really good job. I hope that that is how we feel about our consideration of the Bill. We Liberal Democrats commit ourselves to being brief and very much to the point.

Question put and agreed to.

Clause 1

Independent barring board

Maria Miller: I beg to move amendment No. 3, in clause 1, page 1, line 3, after ‘Independent’, insert ‘Monitoring and’.

Derek Conway: With this it will be convenient to discuss the following amendments: No. 5, in schedule 1, page 32, line 33, leave out sub-paragraph (3) and insert—
‘(3A) No fewer than half of the members of the IBB shall be relevant persons seconded from a local authority.
(3B) For the purposes of this paragraph “relevant persons” means persons with skills in any aspect of child protection or the protection of vulnerable adults.’.
No. 6, in schedule 1, page 33, line 36, at end insert—
‘(d) establishing and maintaining a list of those who have applied to be monitored;
(e) monitoring the quality of prescribed information supplied to the IBB from regulated activity providers and any persons who hold records of convictions or cautions for the use of police forces;
(f) putting in place and regularly monitoring systems that maximise the accuracy of the monitored list and the barred list;
(g) establishing and maintaining a secure on-line system for access to barred lists for employers.’.
No. 10, in schedule 1, page 33, line 36, at end insert—
‘(8B) IBB shall implement a comprehensive and ongoing communications programme to ensure that all groups affected by the vetting and barring scheme are informed of their rights and responsibilities under the law.
No. 7, in schedule 1, page 33, line 41, at end insert—
‘(3) The report shall contain information on the quality of information provided to the IBB from regulated activity providers and any person who holds the records of convictions or cautions for the use of police forces.’.
No. 8, in schedule 1, page 33, line 41, at end insert—
‘(3) The report shall be laid before Parliament for debate.’.
No. 9, in schedule 1, page 34, line 28, leave out sub-sub-paragraph (c).

Maria Miller: This string of amendments relates to the role and responsibilities of the independent barring board.
Amendment No. 3 is intended to probe the Government on their intentions on monitoring. The Bichard inquiry stated that a new and different system was required to monitor and vet individuals working with children and vulnerable adults. A register was to be used to monitor those individuals and would constantly be updated. It would take the police out of the process with regard to the information retained on the database. Just as important, soft data—data that may not be the result of conviction—could be logged so that they, too, could be taken into account as and when necessary.
Sir Michael Bichard made clear recommendations about the system that he thought appropriate. The Bill deals in detail with only one aspect—barring. Although it refers to monitoring, it is rather vague as to how it will be undertaken and by whom. Monitoring and barring are closely linked. The Bichard inquiry said that the failure to identify Huntley through his behaviour patterns was the result of ineffective monitoring of intelligence. That was one of his root findings.
Monitoring can help us build a picture, ensuring that information is readily available from many sources; it should ensure that individuals who are not suitable for working with children and vulnerable adults can be identified. We accept that. However, the Bill is unclear about how the process will be undertaken. If there is not a close link between monitoring and barring, would it not present an opportunity for people to slip through the net, so that, through error or oversight, people were not caught who should be?
The amendment allows me to put several questions to the Minister. Have the Government worked out how the monitoring system will work, and who will undertake the monitoring that Bichard says is so important? Why was a joint role for the IBB rejected, and why does the Bill not include an independent monitoring and barring board? Having read the Bichard recommendations, I should have thought that the obvious solution. A great deal of thought has obviously been given to the matter, and I would welcome the Minister’s confirmation of why that joint role was rejected.
If there are to be two separate bodies, who will decide on the people to be referred? Will the DFES decide on the people who are being monitored who will then be referred on to the barring board for consideration for barring? A number of details are not clear, and I hope that the Minister will take the opportunity to clarify them. There are many examples where regulators both monitor and bar: the General Medical Council and the Law Society are but two. If there are two separate bodies in this instance, because that is what the Government feel will be most effective, will the Minister tell us how those two bodies will work together, how unnecessary complications between two independent groups will be avoided and when we will get the details of how that monitoring system will work?
Amendment No. 5 refers to membership of the IBB. My noble Friend Baroness Buscombe made suggestions when the Bill was undergoing detailed scrutiny in the other place. I felt it appropriate to bring them back. As I mentioned in my opening remarks, a number of issues covered by the amendments were raised in the DFES consultation. This was one. There was concern from people in the professional field that full-time staff were employed by the IBB might not, in the words of the consultation, be of the same standard, and they certainly might not be up to date with the processes and practices that they would need to understand to be effective members of the board.
Amendment No. 5 is tabled perhaps as a suggestion to the Minister that we need to consider more fully the consultation that has been undertaken. Secondment to the IBB may be a technique that can be used, again picking up from the consultation, to ensure that IBB staff are of sufficient quality and have up-to-date experience. Given that consultation, will the Minister confirm whether it will be revisited either through formal amendment to the Bill or through recommendations to the IBB?
Amendment No. 6 is also related to the IBB. This is an incredibly important amendment and requires a little bit of explanation. Bichard states:
“effective vetting depends on information, and much of that information inevitably comes from the police”.
Information is the lifeblood of the IBB and the quality of that information is vital. The second part of the amendment relates back to the online database which was an important part of this initiative when it was launched.
In terms of the quality and accuracy of its data, we must ensure that the reputation of the IBB is established from the outset. Its robustness in taking accurate decisions is reliant on the quality of the data that it uses. Many changes are under way in the ways in which data used in barring decisions are collected. Any professional organisation—the IBB will indeed be a professional organisation—would want to ensure that the information it uses is of good quality. Therefore we believe that it will be sensible to build a need to ensure quality into the systems that the IBB adopts.
Full implementation of the Bichard recommendations is closely linked with the information management, prioritisation, analysis, co-ordination and tasking—IMPACT—database, which has suffered from some delay and has also suffered a great deal of increased expenditure. As part of the discussion on information and information quality, will the Minister update us on the status of the database, and will he confirm whether the delay in that particular data collection methodology is linked to the fact that the monitoring database is not included in the Bill? Maybe the two are linked, or maybe not. Will the Minister confirm the position?
On procedures and procedural changes, there is one other change of which the Minister will no doubt be aware—the change in the way that court convictions are put on databases. Previously that was done by the police, but that was the subject of criticism by Bichard because less than 50 per cent. of court results were put on to the police national database within seven days. As a result, data collection methods have changed, and convictions will be put on by the court, not the police. That is another change, and it needs to be monitored by the IBB to ensure that it has not reduced data quality and accuracy. With all those changes taking place, the purpose of the amendment is to try to make sure that the IBB has a way to ensure quality, and accuracy of decision making.
In a note to the Committee in another place, Lord Adonis said that the IBB was built on the expertise of the criminal records bureau. I would not use the word expertise—I would say “role.” We debated that point on First Reading: the CRB has made 3,000 errors on its existing database since the database was put in place. The Minister rightly says that that is an error rate of only 0.03 per cent., but the errors show that we cannot assume that information coming through is 100 per cent. accurate.
None of us would be complacent about how we deal with such things. However, I shall cite what the independent complaints mediator said in response to the CRB’s mistakes:
“All measures to ensure accuracy must be taken.”
The spirit of the amendments is to make sure that accuracy goes to the heart of the IBB’s activities.
I should like to hear the Minister’s reaction to my comments on how quality and accuracy will be dealt with by the IBB. I should like to know whether he agrees that the amount of ongoing change on all the different data strands means that there is an opportunity for the Government to reconsider their stance and consider the amendment. On amendment No. 6, it would be useful to have feedback from the Minister on online access, because that was one of the main planks of the announcement—that the Bill would allow online access to the barred database. Despite concern about it in the April 2005 consultation, it remained an important part of the media launch, yet is not in the Bill. Will the Minister explain how that aspect of the scheme will be progressed—or has it been dropped? The Minister will remember that I mentioned the subject on Second Reading.
There has been great concern in the United States about experience of online database security. In, I believe, 11 states, individuals hacked into the relevant system and not only gained access to it but changed information about individuals online. I am sure that the Minister shares my concern about that. I can entirely understand it if the Government are taking another look at that aspect of their announcement, but it would be useful to know whether they are, because the matter was given widespread coverage.
Amendments Nos. 7 and 8 go together, as both relate to parliamentary scrutiny. Consultation suggested that accountability is absolutely vital to the new independent barring board process. I can think of no better accountability and scrutiny than that afforded on the Floor of the House of Commons. Amendments Nos. 7 and 8 would ensure that that scrutiny could take place and could offer the IBB the opportunity for a little independence on the issues that it raises. The amendments would also mean that the IBB was not answerable only to the Minister, as it currently is under the Bill. The amendments would also ensure an opportunity to scrutinise the body’s finances. I say “the body” because it is not yet entirely clear what sort of body the IBB will be.
It has been mooted that the IBB will be a non-departmental public body. I was going to ask the Chairman’s permission to hold a small stand part debate on that, because it is important to how the Bill works that we have clarity on what sort of body the IBB is. If it were an NDPB, Parliament would have to be able to scrutinise its finances in order for it to be line with the guidance issued on NDPBs. Perhaps the Minister could give me some clarity on that.
Amendment No. 9 is a strange one. It would remove the IBB’s ability to borrow money. It is clear from guidance that NDPBs have powers and obligations allowing them to raise, borrow and lend money, but what does the IBB need to borrow money for? The guidance on NDPBs says clearly that the Treasury would not be willing for a Bill such as this to include provisions on loan finance relating to an NDPB, on the off-chance that those provisions will be used. The Minister will need to clarify why a provision for borrowing money is needed, if he is to ensure that he stays within the Government’s guidelines on such bodies.
Amendment No. 10 relates to communications. Everybody who has scrutinised the Bill—including, I am sure, all of us in the Room—will understand how much change it would mean for many people. As a result, there is an obligation on Government, and particularly on the IBB, to ensure clear communication on what the proposed changes will mean for the various groups that will be affected. We believe more discussion is needed in a number of areas to provide clarity of communication, and we will discuss them, but we need to be absolutely reassured that, as soon as the Bill moves forward, there will be a programme of activity to ensure that its contents are effectively communicated to those outside. That is important, given the terms used in the Bill.
In particular, the Bill includes the concept of being monitored. That is a positive aspect, but perhaps it will not be seen as such by those who have not been able to scrutinise it as much as we have. We must make sure that people understand those terms and that they are not viewed in a way that is not intended. We have to make sure that employers, employees, professional bodies and local authorities understand their responsibilities, and we must minimise any inadvertent criminal behaviour that may result if communication is not undertaken well.
About 10 million people will be affected by the Bill, and the Minister rightly pointed out that it is technical and complex. We in Committee will attempt to unpick some of that complexity and to ensure that the Bill is clearer in its communication. We also need to ensure that there is a further round of communication involving all who will be affected by it.

Annette Brooke: I shall address amendment No. 10 first because it is crucial. Given that so many details will be determined in regulation, it will be difficult for employers, for example, to know the precise obligations on them, unless there is great clarity in the board’s communications. As I read through the Bill, I feel that a flow chart would be a pretty useful accompaniment, because the text takes us down one route, only to send us down others if certain conditions do not apply. The amendment is therefore important and should be included in the Bill.
On amendment No. 3, I agree with the hon. Member for Basingstoke that there is a lack of clarity about the term “monitoring”. The difficulty is that we use it to mean a precise activity in some parts of the Bill, but that we then slip into using phrases such as “the importance of monitoring”. One need only look at amendment No. 6, which talks about
“monitoring the quality of prescribed information”,
which represents a move away from the monitoring of the activity. For that reason alone, I am dubious about putting the word “monitoring” in the board’s title. However, I hope that the Minister will be able to inject some clarity into exactly what is meant by monitoring. To be clear, we perhaps have to classify the different monitoring activities and to specify who is responsible for them. As I said, there is a main theme going through the Bill, but, inevitably, there are a lot of other aspects.
I appreciate that amendment No. 8 goes with amendment No. 7, but it raises an important issue. Introducing a process to ensure that there is full parliamentary scrutiny must be a good thing.
Therefore, the amendments contain many sentiments with which we agree, although I am a little cautious about some of the wording. Amendment No. 10, however, is of the greatest importance.

Parmjit Dhanda: In my opening remarks, I should perhaps have welcomed my hon. Friend the Under-Secretary of State for Health and the Under-Secretary of State for the Home Department, my hon. Friend the Member for Enfield, North (Joan Ryan), who will be assisting me in Committee. The Bill impacts across the Government, and the Home Office has a particular function with regard to the Criminal Records Bureau. I should also welcome the fact that the hon. Member for Basingstoke is leading on a Bill for the first time since she took up her post. I am sure that she will lead for her party on very many Bills.
I shall go through the amendments in detail, but I should make it clear at the outset that the independent barring board has a role in making decisions and that the CRB looks after the monitoring side of things. However, I shall elaborate on that later.
Amendment No. 3 would turn the independent barring board into an independent monitoring and barring board. As the Bill stands, the monitoring function rests with the Secretary of State—that is to say, with the CRB, as an executive agency of the Home Office. By itself, the amendment would do nothing to change that. The monitoring function involves obtaining any information about a person’s criminal background from the police. Under the new scheme, the CRB will not only collate information from police records when an employee first applies, but continue to monitor police information systems thereafter, so that, if a fresh offence comes to light, the bar can be applied. Obviously, the CRB has great experience in that regard, but that work will not be related to the work of the IBB, which will make the decisions about who is and who is not barred.
The IBB will be an expert body, and its expertise will be in making those barring decisions in relation to children and vulnerable adults. The CRB has expertise in handling information about people’s criminal backgrounds, dealing with the police and matching criminal background information to the identity of the applicant. It makes sense for the CRB to feed that information to the IBB and for the IBB to take the barring decisions, each body doing what it singularly does best. Requiring the IBB instead of the CRB to monitor police information, which is the implied intention of the amendment, would cut across that pattern of expertise.
Amendment No. 5 would remove the IBB’s discretion to make arrangements for persons to be seconded to it to serve as members of its staff, and would insert instead a requirement that no fewer than half of the members of the IBB should be persons with skills in any aspect of child protection or the protection of vulnerable adults who are seconded from a local authority. The amendment would replace a provision concerning IBB staff with a provision concerning IBB members, so it would create technical difficulties.
The members of the IBB and its staff will need to be the best people with relevant expertise, pure and simple.

Sarah Teather: Does the Minister recognise that there is concern about which decisions will be delegated from the board to staff? That might be part of the reason behind trying to get at who the membership of the board and the staff should be.

Parmjit Dhanda: I will come to that in greater detail, both in discussing this clause and throughout our discussions on the Bill. I am sure that the hon. Lady will be aware that, during the course of a year, the IBB will be making up to 2 million applications, and about 40,000 discretionary decisions. With an IBB board of about 10 members, we obviously have to rely on the IBB to set up those processes and to make those difficult decisions. It is an expert body to do just that.

Maria Miller: The Minister brought up capacity in terms of 40,000 discretionary decisions. I have done a little research into some of the numbers of discretionary decisions made by other regulatory bodies and found that they fall well short of that figure. Is he happy that the number of staff and the structure of the organisation can cope with that level of discretionary decisions required?

Parmjit Dhanda: These are things that we must continue to consider and discuss with stakeholders, and then set out in regulation. At present, we are looking at having about 10 people on the board and 100 staff, but we will have to examine these things closely. That is one of the reasons why we are working closely with stakeholders.
I go back to the amendment that I was discussing. There is considerable expertise in local authorities, and we hope and expect that it will be represented in both the membership and staff of the IBB. That comes back to a point made by the hon. Member for Basingstoke about safeguarding and whose role that is. We all have a role in safeguarding and part of our role is to ensure that it is not just about the IBB, or the CRB. It must be about Departments, providers, parents, employers and regulated activity providers.
Other types of expertise will be relevant when considering the IBB: expertise in employment law, policing and civil and human rights; and the expertise of informal carers, human resources professionals, those engaged in and with knowledge of supported housing, professional and regulatory bodies, and victim support groups and people in many other areas. We shall want the best people from all those disciplines to compete for jobs to ensure that IBB members and staff are the best people for them.
Placing a rigid quota in the Bill, as the amendment proposes, would be likely to constrain the IBB by removing the freedom it needs to appoint the best people to do the job. I hope that I have given the hon. Lady the information that she was seeking, and that she will agree not to press the amendment to a Division.
Amendment No. 6 adds four new functions to the IBB’s core functions. As set out in the Bill, the core functions are the IBB’s essential decision-making roles in relation to barring. That reflects our vision of an expert body with a tight focus on taking independent, expert decisions, serviced by the existing structures in the CRB, as I have said already.
The addition of extra functions would risk diluting the IBB’s focus. Another important reason why the new functions would be inappropriate is that the core functions are described in the Bill as functions that cannot be delegated. That is a reasonable criterion for a core function, and there is no reason why proposed new functions relating to IT systems maintaining a list and an online updating system for employers should not be delegated to those with the appropriate level of expertise.
Classing those as core to the IBB’s operation would constrain its freedom and remove its current tight focus on making barring decisions.

Sarah Teather: This is a point about clarification and might be perfectly obvious. When the Under-Secretary talks about delegating a decision, is he talking about delegating from the board to the staff, or from the IBB to another body? I am not clear on what he means exactly.

Parmjit Dhanda: I am speaking about delegating functions, such as IT systems, from the IBB to another body.

Maria Miller: Does the Minister not see that the quality of the IBB’s data is at the heart of its ability to make good decisions? Ultimately, its focus should be on good decision making and so the quality of the data, by definition, will be at the heart of its function.

Parmjit Dhanda: I agree that the quality of the decisions is the most important thing, which is why I wish to keep a tight focus on the core functions of the IBB’s role, which is making those decisions.
To return to decision making, which the hon. Lady mentioned in her earlier contribution, I would like to flesh out something and to make the position clear: the IBB would be responsible for the list of those who are barred from working with children and vulnerable adults. Those are the core reasons. I could go into each of the four areas, but I think that I have made the point that we do not want to expand those core areas, because we want the IBB to contain and keep its focus.
On monitoring the accuracy of the list, I have explained already that the monitoring function is for the CRB and not the IBB. The accuracy of the data on those subject to monitoring will be a matter for data handling and identity matching. Those are matters in which the CRB has expertise. The IBB is being created to give independence and expertise in taking barring decisions and should not be relied on to police the CRB, which is already accountable directly to the Home Office.
The CRB has worked hard to improve the quality and accuracy of its existing disclosure service. It has commissioned annual research studies on how its performance is perceived by its customers, and it works to a five-year strategy and business plan. I assure hon. Members that the CRB will be developing robust systems for ensuring the accuracy of information on individuals subject to monitoring. I hope that hon. Members will agree, therefore, that there is no formal role for the IBB in the monitoring of the accuracy of that information.
Amendment No. 10 deals specifically with a communications strategy. I am wholly in agreement, as I was on Second Reading, on the need for a widespread and ongoing communications campaign, so that all those affected by the new vetting and barring scheme are aware of their rights and responsibilities under the legislation, and to that extent I agree with the hon. Member for Mid-Dorset and North Poole (Annette Brooke). Indeed, we have made a number of commitments in the other place and on Second Reading. However, as well-intentioned as I believe the amendment to be, for a range of reasons, I do not think that it would be suitable for it to be added to the Bill. It is not necessary. As I have said, we have made those commitments. It would add little to make that implicit in the Bill, because we are already more than committed to take that course of action.
It may help if I clarify the areas in which we intend to assist the groups affected by the scheme to understand and to recognise their responsibilities under the Bill. It will be crucial to ensure that employees and employers are aware of the requirements that they face when engaging in regulated activity. Guidance will be issued providing further detail about what type of activity will be covered by the provision, so that employees, for example, can be aware of situations in which they need to be subject to monitoring. Employers need to know when they have to check on an individual’s status in the scheme.
Further guidance will be necessary to help employers and employees to interpret important terms that we shall be discussing later, such as “frequently” and “on an occasional basis”, which lie at the heart of the concept of regulated activity. Beyond that, we shall instigate an ongoing communications strategy, so that employers, local authorities and other bodies are clear about the grounds on which they are under a duty to refer prescribed information to the scheme. We shall move to a shared understanding with stakeholders about the nature of the conduct and harm that should trigger a referral, something that we shall be discussing under schedule 2. Any guidance that we issue will be explicit that acts of omission and well as commission can contribute to the harming of a child or a vulnerable adult. Alongside that, it will be crucial that stakeholders understand the way in which referrals should be handled and the IBB’s approach to dealing with them.
The mechanics of the IBB will need to be as transparent as possible and implicit in that is that we communicate to all those affected by the scheme how the overall barring process will work. Implementing an effective communications campaign to cover all those commitments will not be easy, but we have already begun to talk to the wide range of stakeholders with an interest in the Bill and we will continue to consult them about how we can make the information process as effective as possible.
We shall take advantage of a variety of communication tools, including widely disseminated guidance, media such as local authority newsletters and articles in the trade press, practitioner workshops and seminars as well as consultative groups on the vetting and barring scheme. It will be important also to build on the current line of communication stakeholders that has been established by my Department, the Department of Health, the Home Office and the Criminal Records Bureau. I hope that I have made it clear to members of the Committee how strongly committed we are to implementing an effective programme of communications. We do not need to make it any more explicit under the Bill.

Sarah Teather: Does the Minister agree that one of the learning points from the recent Audit Commission report was the lack of clarity in the guidance that was distributed from the DFES to schools and, in particular, the repeated bits of guidance that often did not make it clear when information was new and what had been updated? What has the Department learnt from that experience? How will it implement that when putting forward the new guidance, so that it is much easier for schools to understand what is new and what their responsibilities are?

Parmjit Dhanda: We are very much in consultative mode on such matters and shall be working closely with the shareholders. We are already working closely with Sir Roger Singleton, for example, who has taken over the work on List 99. We want to use his experience when setting up the IBB. We are doing all that we can now. We have had several consultations along the way, but I assure the hon. Lady that we will be working closely with stakeholders, which is why we will be linking in with schools as well as local authorities and their local media to get across the guidance. I accept that some of the terms, not least “subject to monitoring” and “not subject to monitoring”, can be complicated and that it can take time for people to get their head around them.
The implication of the amendment seems to be that the burden of instigating an ongoing communications campaign will fall mainly on the IBB. As I have said, in reality, that will not be the case. It will be the role not purely of the IBB, but of the Criminal Records Bureau, the Department of Health and the Department for Education and Skills—all of us. With that in mind, and considering the reassurances that I have given on our determination to implement an effective communications campaign, I hope that hon. Members will not press their amendments.

Annette Brooke: Can the Minister reassure us that there will be a lead body or person for the communications strategy? He has just mentioned a number of bodies, and I am concerned that the responsibility could fall between them. It is therefore important that we identify who will be the lead person with overall responsibility.

Parmjit Dhanda: I am happy to help the hon. Lady. We are setting up a working group of Ministers from my Department, the Department of Health and the Home Office. That is part of the reason why all three Departments are represented here today. We will ensure that the vetting and barring scheme is implemented once the Bill receives Royal Assent and there will be ministerial oversight of that process.
Amendment No. 7 would require the IBB’s annual report to contain details on the quality of information provided to it by regulated activity providers and by any person who holds records of convictions or cautions for use by police forces. There is a provision in paragraph 9 of schedule 1 that the annual report must be on the exercise of the IBB’s functions. Paragraph 10 of that schedule adds:
“The Secretary of State may direct the IBB to submit a report to him on any matter regarding the exercise of IBB’s functions.”
That provides a reporting scheme that will enable everything relevant to be included without Parliament having to specify chapter headings or anticipate new issues that might arise from time to time.
I am not saying that the IBB’s annual report should not contain information on the quality of information that it receives from the police, from regulated activity providers or from others under the duty to refer. Indeed, it would be a good thing for the annual report to contain that information. However, there are many topics in relation to the exercise of its functions that the IBB could usefully cover in its annual report. To describe one such topic would be to put it above the others without good reason.

Maria Miller: Can the Minister say who will dictate what is in the report?

Parmjit Dhanda: We will not dictate what is in the annual report, but the Secretary of State will have the ability to request reports on a range of issues. I hope that that satisfies the hon. Lady.
There are already arrangements in place for reporting on improvements in the quality of police information. A number of Bichard recommendations address the management and sharing of police information, and regular progress reports are published under the Bichard programme.
Amendment No. 8 would require that the annual report
“shall be laid before Parliament for debate.”
I accept that the report will be of interest to the House, but a provision in primary legislation is not necessary. If hon. Members want to debate annual reports, which they may well wish to do, that will be a matter for the House to decide at the appropriate time.

Tim Loughton: Whether reports should be produced to the Minister responsible or to Parliament is old territory. In the case of the children’s commissioner, the suggestion was strongly taken on board by one of the Minister’s predecessors that the commissioner’s report, which has to be presented to the Secretary of State for Education and Skills, should also be presented to the Select Committee on Education and Skills, so that he could be invited to discuss the annual report in front of that Committee. Does the Minister envisage a similar process taking place in this case, whether involving the Select Committee on Home Affairs or the Education and Skills Committee?

Parmjit Dhanda: The hon. Gentleman makes an interesting point. I do not think that it is my place to rule his suggestion in or out, but it is certainly interesting and could be considered. As I said, the annual report will be of interest to the House. If problems arise from the failure of the vetting and barring scheme, hon. Members will have no difficulty in securing a ministerial statement and a debate, as we have seen in recent times. Therefore, I have taken on board hon. Members’ points, but hope that the Committee will accept that the amendment is unnecessary.
Amendment No. 9 would remove an incidental power of the IBB to borrow money, but only in connection with the exercise of any of its functions. There is no general power for the IBB to set itself up as a financial speculator. In principle, it will need to work with annual break-even budgets. If it were to conclude that the outright purchase of, say, a batch of IT equipment or office furniture would give good value for money, it might wish to borrow money for that. That is why the provision has been included.
The hon. Member for Basingstoke mentioned the IMPACT programme. It is an ongoing piece of work. I would be happy to write to her with more information on exactly how things are progressing, and I will do that. She mentioned the CRB and some 3,000 CRB errors. I believe that that is off the back of the recent report about duplication. However, it is worth remembering in that context—I am sure that my Home Office colleagues would want me to say this—that some 25,000 people were protected last year through decisions made by the CRB.
The hon. Lady asked a pertinent question about online access, which will be discussed under schedule 4. It is our intention to set up online access for the scheme so that people will be able to check whether somebody is subject to monitoring. That is an important issue and very much part of our proposals, and I look forward to debating it, whether today or Thursday.

Tim Loughton: The Minister skirted briefly around amendment No. 9 and the power to borrow, but I am still mystified as to why this body will need such a power. Is it purely for short-term borrowings, in which case the board will be expected to have balanced its books by the end of the year on a cash-flow basis? If it ends up with a deficit, how will it be taken into account when judging the budget for the following year? Will the following year’s budget be suitably adjusted downwards to take account of the borrowings, as happens with health trusts, for example? Exactly how will that work? A mention that the board might like to buy some furniture does not really take account of a large power; that is, to borrow. As the IBB is, in effect, a distant part of Government, why does it need such powers?

Parmjit Dhanda: The hon. Gentleman makes an interesting point. I envisage that there will be an expectation for the board to balance its books, as there is for most organisations. I am afraid that I do not have at my fingertips how it is to do that, but I would be happy to write to the hon. Gentleman to clarify the Department’s thinking on the matter.
With all of that to be taken into consideration on this string of amendments, I hope that hon. Members are satisfied that I have given enough information for the amendment to be withdrawn.

Maria Miller: I thank the Minister for his response on this string of important amendments, which needed further debate and clarification. I thank the hon. Member for Brent, East for her support for several of the amendments. I appreciate that support, particularly in respect of communication. I am glad that she shares my concern that adequate communication is vital if the Bill is to be effective as and when it is put into place.
I was interested by the Minister’s response about the monitoring side of things. Obviously, the Government have considered that and decided that there will be a separate body and that the activity will be undertaken through the CRB. Several issues remain hanging, to which he will perhaps return on Report. The CRB experienced great difficulty with capacity, certainly immediately after it was set up. Giving the entire role to the CRB would, in effect, double the size of its operation. The CRB deals with 9 million people, and although there might be some duplication, my understanding is that a further 9 million to 10 million would be covered by the remit of the Bill. On Report, it would be interesting to hear of any further discussions on how that will be dealt with.

Parmjit Dhanda: It is probably fair to say that those people are not likely to be an additional 7 million to 9 million people, because many of those on whom the CRB will carry out checks will already be working, for example, in the schools work force.

Maria Miller: I thank the Minister for that clarification but, in a way, it misses the point. This is not a checking system but a monitoring system, and the two are entirely separate. Having people checked each year is a one-off process. They put their application in to be checked by the CRB—as a school governor, for example—and it is done, dusted and sent to those who requested the check. This is an entirely separate process and involves setting up a database of 9 million people, an undertaking that most organisations would face with some trepidation, particularly given the need for as high a level of accuracy as possible. I am somewhat concerned at that response, because it does not show that the Minister has grasped that a database of 9 million people would have to be managed and monitored and that the information on it would have to be acted on. It is an entirely separate and different process to that currently undertaken by the CRB.

Parmjit Dhanda: Let me add a bit of clarity. The independent barring board will be responsible only for lists of those barred from working with children and those barred from working with vulnerable adults. The CRB’s role is to work as a monitor with other databases, including the police national computer database. We are not saying that the IBB list will be of the order of 7 million to 9 million people. I am sure that the hon. Lady was not saying that either, but I thought I would mention it for clarity.

Maria Miller: So, the CRB is to undertake the role of monitoring. I think that we shall have to return to the subject in later stages of the Bill, because we will require some idea of how the database will be run. Who will undertake the weeding of the data?

Sarah Teather: May I, rather obtusely, ask the hon. Lady to get some clarity from the Minister? I am looking at the explanatory notes and the extra money that the Treasury has agreed seems to be for the DFES budget and not for an expansion of the CRB’s operation, which is the point that she was making to the Minister. Obviously, we will require extra capacity if extra checks are to be done.

Maria Miller: I thank the hon. Lady for that point. Before the Minister responds, I want to draw his attention to something that builds on it. It is a statement from one of his right hon. Friends, the former Home Secretary, a few Home Secretaries ago—the right hon. Member for Sheffield, Brightside (Mr. Blunkett)—in response to a debate in May 2004:
“We will...urgently consider”
Sir Michael Bichard’s
“recommendation that a register be created to bring together all the relevant information held on individuals in a way that is easily accessible. We need to consider how that fits with and enhances the service already provided by the Criminal Records Bureau.”—[Official Report, 22 June 2004; Vol. 422, c. 1186-87.]
That does not imply that there will be merely a straight swap and that the register will be the responsibility of the CRB, although it will sit alongside the CRB. Certainly at that stage, it was not necessarily seen as an activity undertaken purely by the CRB. The Minister may wish to respond to that and to the comment of the hon. Member for Brent, East.

Parmjit Dhanda: I am happy to respond to those points.

Derek Conway: Order. Before the Minister does that, so that we do not get carried away, I must say that the debate can continue if the Committee wishes, but in future I shall call the Minister to intervene only if he indicates that he wants to. It is not for the Opposition spokesman to keep the debate running in this way.

Parmjit Dhanda: On the point made by the hon. Member for Brent, East, I gave on Second Reading the figures available for the vetting and barring scheme. I do not have them at my fingertips but think they were in the order of £14 million in the first year, with similar figures during the next five years to put the scheme in place.
On the enlarged role of the CRB, the monitoring of police information systems is a development of the current CRB processes. Feasibility studies have confirmed that the operational basis for that work is in place. It is feasible.

Maria Miller: I apologise, Mr. Conway. We may have taken the discussion on monitoring as far as it can go at the moment, but I feel, and other members probably agree, that more discussion is needed. It is an important issue. Monitoring people is so important that the weeding of data caused great concern in the events leading to the Bichard report. A number of areas not dealt with in detail in the Bill may need further exploration.
I move to the Minister’s response on my hon. Friends’ amendments. I take on board his comments on secondment, but yet again he seems to be brushing aside responses from consultation. I am sure that he will know best how to handle that. Perhaps, in the spirit of this debate, he might consider the conversations that we have had today on the matter and ensure that they are communicated to the IBB so that staff employed in that organisation will be aware of the debate on the issue and the opinions expressed during consultation.
The Minister responded on information and quality. I hope that he does not feel that the amendments would dilute the focus of the IBB and that the quality of the IBB’s data will be at the heart of ensuring that it performs its core function. Presumably, the IBB will be able to address that in its own way. Quality is key. We must ensure with all the changes going on and all the problems encountered that we are in no way complacent and that all is being done that must be done to ensure that quality improves.
I understand the Minister’s sentiment that the current level of CRB error is relatively small. However, in absolute terms, each of the 3,000 people who were erroneously given records that they had done nothing to deserve found that a very difficult situation to handle. In some cases, it caused great concern.
I am pleased to hear the Minister’s commitment that communication is an important part of what will happen following the passage of the Bill. I endorse his statement that it is not just the IBB that will need to undertake communications and that it will be the role of many others, but I should like to pick up on the point made by the hon. Member for Brent, East. We need to ensure that the communication is co-ordinated and that we do not fall into a situation in which others feel that it is not their job to communicate or that others are undertaking that communication.
Unfortunately, there is not a good record of good, clear communication from the Government on some of these matters. I am sure that the Minister would accept that and understand why we have raised the point.
I thank the Minister for his comments about parliamentary scrutiny and for his positive remarks on the recommendation made by my hon. Friend, the hon. Member for East Worthing and Shoreham on the matter of parliamentary scrutiny, and perhaps on an assurance of having a Committee look at the report. I understand that it is not for the Minister to dictate that but am pleased that he would think it a positive thing.
In terms of the ability to borrow money, the Minister needs to revisit the code of practice on non-governmental public bodies to ensure that he is entirely in line with the requirements of the Treasury. The practice guidelines state that the use of money needs to be clear, if it is to be put into a Bill. As my hon. Friend the Member for East Worthing and Shoreham said, that is a significant power. Understandably, the Treasury needs to ensure that it knows when people will have the ability to raise money and why they would need to. Once the Minister has had the chance to consult the code of practice more fully, we may need to revisit that.
I thank the Minister for his update on the IMPACT system. I hope that we can hold him to some of the reports saying that the system, rather than being ready next year, will be ready in 2010 and that we do not see any further escalation in the costs associated with that system, which have increased dramatically since the project was started.
I thank the Minister for his response to that string of amendments. I have used this opportunity to reiterate some concerns raised, not just among my colleagues, but in the various consultations that have taken place. I hope that the Minister has listened to my comments and considered the amendments in the spirit in which they were meant—that of improving the Bill—and that he will ensure that we work together, as we should. In the hope that he will ponder further before Report, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.
Mrs. Millerrose—

Derek Conway: Before I call Mrs. Miller, I make it clear that the stand part debate, which I am happy to allow, will be on the clause; it will not be a Second Reading on the entire Bill. I will need the Committee’s co-operation in sticking to the content of the clause itself.

Maria Miller: Thank you, Mr. Conway. As I said earlier, I want to raise one matter about the structure of the independent barring board. It is a specific but important point because it will enable us to have better debate on amendments to subsequent clauses.
Will the Minister detail exactly what type of body the IBB will be? Will it be a non-departmental public body, as suggested in some correspondence that came out of the debates in the Lords, although, that was not absolutely stated, but was merely an indication? Non-departmental public bodies are distanced from Government and are independent on a daily level. However, as the guidance issued to Ministers on non-departmental public body states:
“Departments will need to identify whether in the circumstances of a particular non-departmental public body, Ministers will need to retain control over and so be accountable to Parliament for certain aspects of the NDPB’s activities.”
The Minister will be accountable for the work of the IBB, but where will the line be drawn on the Minister’s and Department’s role in its operation? Where does he see the line being drawn on becoming involved if there is political pressure to do so? He feels that the IBB should be independent, but if it is established as a non-departmental public body, there will be an opportunity for Ministers and politicians to get involved in its running. Will he reassure us that that will not happen?
If the IBB is constituted as a non-departmental public body and not as a tribunal, I shall be interested to know why. Different issues are associated with constituting it as a tribunal, which would give it a different flavour and complexion. However, I should be interested to know why the decision was made to go down one route and not the other. The care standards tribunal will be the body of appeal to which people can go after they have been assessed by the IBB. There needs to be a link between the two bodies, and certainly between the thresholds that they use to assess whether somebody has undertaken activity that requires barring. I find it difficult to understand, so perhaps the Minister will clarify the matter.
It is worth reiterating that on 19 January, the then Secretary of State for Education said that the new legislation, which we are discussing today, will
“remove Ministers from the process entirely”.—[Official Report, 19 January 2006; Vol. 441, c. 969.]
By constituting the IBB as an NDPB, that is not actually the case. Perhaps the Minister can tease out the role of politicians, because if the former Secretary of State felt that politicians should be entirely removed from the process, I am not sure that her analysis of the situation was entirely correct.

Parmjit Dhanda: I shall put on record a couple of remarks about clause 1, then come to the hon. Lady’s points.
Clause 1 establishes a new statutory body to be known as the independent barring board. Schedule 1 makes provision regarding the IBB, including its membership and staffing arrangements. It also sets out its responsibilities for reporting to Parliament and the Secretary of State. Those reporting arrangements will ensure that the IBB is held accountable for its work.
Schedule 1 allows the IBB to delegate its core functions to its staff. The core functions of the IBB are to determine whether to include someone on a barred list or remove someone from a barred list and to consider representations made under schedule 2. The ability to delegate those functions to staff members will allow the IBB to manage its work load effectively.
The IBB will also delegate its non-core functions, for example its purely administrative functions, to people outside the IBB, such as the Criminal Records Bureau. That will allow the IBB to build on the data-processing expertise of the CRB. The IBB will be held accountable for the work that it delegates to others.
The statement of 19 January from my right hon. Friend, the former Secretary of State for Education, promised that we would establish a statutory body that would hold the barred lists and take decisions about who should be barred. This clause, in conjunction with schedule 1, delivers those commitments.
The framework that the clause and schedule provide for the IBB will ensure that its decisions are taken by experts totally independent of Ministers. I reassure the hon. Member for Basingstoke that Ministers will have no involvement in decisions about barring. The Bill places the IBB under a duty to publish annual reports, which will mean that it is held accountable for its decision making and performance. In addition, the Secretary of State will be able to request that the IBB report on specific aspects of its performance throughout the year.
We will ensure that the IBB has a mix of experts in child and vulnerable adult protection. The balance of expertise will need to reflect the work of the IBB and will need to be able to adjust to changing circumstances. We have therefore decided not to specify the membership in the Bill as that follows from the fact that the right people will need to be appointed through a process

Judy Mallaber: Will the Department give guidance on the make-up of that body? As I have mentioned to the Minister privately, I would be most concerned if it did not include people from the new Child Exploitation and Online Protection Centre, which has been set up to safeguard children and possess the expertise on internet issues relating to children’s safety. Does the Minister expect to give advice on the type of organisations that might have representation on the board?

Parmjit Dhanda: My hon. Friend makes a fair point relating to IT issues, and I am sure she wants to debate it later. We wish to discuss the matter widely with stakeholders, many of whom have an active interest in the area that she mentions, when we formulate the process to create the IBB.
Clause 1 and schedule 1 are essential because they allow the IBB to be set up. Its existence will mean that decisions on barring are taken by experts independently of Ministers. That will deliver more consistent barring decisions informed by the expertise of the IBB’s members. The answer to the question asked by the hon. Member for Basingstoke about whether it is a non-departmental Government body is yes. It is not a tribunal, but it needs to have the interface that she mentions, which we will discuss later, in respect of the appeals process to the Care Standards Tribunal. The tribunal can refer a decision back to the IBB for it to give further consideration. I do not want to get too far into that debate.

Maria Miller: On that specific point, if there is this direct link between the Care Standards Tribunal and the IBB, will they share the same standard of proof on the information required to put in place a barring?

Parmjit Dhanda: An interesting debate was had in another place about how the appeals process should work. The process was widened to include not just on “a point of law” but on “a point of fact”. It is a case of the tribunal’s making those decisions when it considers all the facts, but we cannot fetter the IBB by being too stringent, or by being stringent at all, in terms of its criteria. It will be an expert body and will be best placed to make those complex decisions, because every case is different. It is difficult to categorise them or lump them together.

Maria Miller: I want to probe a little further on that point. If the appeal body is a tribunal that is set up with the burden of proof being the civil burden of proof , and if another body reports into it that has a much vaguer burden of proof because it is not a tribunal and does not have those standards of proof attached to it, does the Minister not foresee a difficulty?

Parmjit Dhanda: The Care Standards Tribunal will already have criteria in place from the work that it has being doing over a period of time. I am happy to write to the hon. Lady with more information about that. The fettering of the IBB and how it will make decisions on individual cases will come up again during the course of our debates. It is important to have regulations but we must ensure that it is able to get on with its job and to do so entirely independently. Having said that, I recommend that the clause stand part of the Bill.

Question put and agreed to.

Clause 1 ordered to stand part of the Bill.

Schedule 1

Independent Barring Board

Maria Miller: I beg to move amendment No. 90, in schedule 1, page 32, line 15, leave out ‘thinks’ and insert ‘has reason to suspect’.

Derek Conway: With this it will be convenient to discuss the following amendments: No. 91, in schedule 1, page 34, line 29, leave out ‘thinks’ and insert ‘believes’.
No. 92, in schedule 1, page 34, line 33, leave out ‘thinks’ and insert ‘has reason to believe are’.
No. 93, in schedule 1, page 34, line 38, leave out ‘thinks’ and insert ‘has reason to believe are’.
No. 11, in schedule 2, page 35, line 11, leave out from ‘If’ to ‘that’ and insert ‘there is evidence’.
No. 12, in schedule 2, page 35, line 18, leave out from ‘If’ to ‘that’ and insert ‘there is evidence’.
No. 13, in schedule 2, page 35, line 24, leave out ‘it appears to IBB’ and insert ‘IBB has evidence’.
No. 14, in schedule 2, page 35, line 28, leave out ‘it appears to IBB’ and insert ‘IBB has evidence’.
No. 15, in schedule 2, page 35, line 33, leave out from ‘If’ to ‘that’ and insert ‘IBB has evidence’.
No. 18, in schedule 2, page 36, line 30, leave out ‘it appears to IBB’ and insert ‘IBB has evidence’.
No. 19, in schedule 2, page 36, line 34, leave out ‘it appears to IBB’ and insert ‘IBB has evidence’.
No. 42, in schedule 2, page 36, line 36, after ‘if’, insert
‘there are reasonable grounds to suspect that’.
No. 20, in schedule 2, page 37, line 6, leave out from ‘if’ to ‘that’ and insert ‘there is evidence’.
No. 21, in schedule 2, page 37, line 13, leave out from ‘If’ to ‘that’ and insert ‘there is evidence’.
No. 22, in schedule 2, page 37, line 19, leave out ‘it appears to IBB’ and insert ‘IBB has evidence’.
No. 23, in schedule 2, page 37, line 23, leave out ‘it appears to IBB’ and insert ‘IBB has evidence’.
No. 24, in schedule 2, page 37, line 28, leave out ‘it appears to IBB’ and insert ‘IBB has evidence’.
No. 25, in schedule 2, page 37, line 36, leave out ‘it appears to IBB’ and insert ‘IBB has evidence’.
No. 26, in schedule 2, page 37, line 38, leave out ‘it appears to IBB’ and insert ‘IBB has evidence’.
No. 27, in schedule 2, page 38, line 12, leave out ‘it appears to IBB’ and insert ‘IBB has evidence’.
No. 28, in schedule 2, page 38, line 16, leave out ‘it appears to IBB’ and insert ‘IBB has evidence’.
No. 46, in schedule 2, page 38, line 18, after ‘if’, insert
‘there are reasonable grounds to suspect that’.
No. 94, in schedule 2, page 39, line 40, leave out ‘thinks’ and insert ‘has reason to believe’.
No. 95, in schedule 2, page 40, line 10, leave out ‘thinks’ and insert ‘has reason to believe’.
No. 96, in schedule 2, page 40, line 45, leave out ‘thinks’ and insert ‘has reason to suspect’.
No. 97, in schedule 2, page 41, line 2, leave out ‘thinks’ and insert ‘has reason to suspect’.
No. 98, in schedule 2, page 41, line 5, leave out ‘thinks’ and insert ‘has reason to believe’.
No. 99, in schedule 2, page 41, line 9, leave out ‘thinks’ and insert ‘has reason to believe’.
No. 100, in schedule 2, page 41, line 34, leave out ‘thinks’ and insert ‘has reason to suspect’.
No. 101, in schedule 2, page 41, line 46, leave out ‘thinks’ and insert ‘has reason to suspect’.
No. 62, in clause 21, page 13, line 42, leave out ‘thinks’ and insert ‘believes’.
No. 63, in clause 21, page 14, line 2, leave out ‘thinks’ and insert ‘believes’.
No. 64, in clause 21, page 14, line 5, leave out ‘thinks’ and insert ‘believes’.
No. 65, in clause 21, page 14, line 6, leave out ‘thinks’ and insert ‘believes’.
No. 66, in clause 21, page 14, line 13, leave out ‘thinks’ and insert ‘believes’.
No. 67, in clause 21, page 14, line 17, leave out ‘thinks’ and insert ‘believes’.
No. 68, in clause 21, page 14, line 32, leave out ‘thinks’ and insert ‘believes’.
No. 69, in clause 23, page 15, line 39, leave out ‘thinks’ and insert ‘believes’.
No. 70, in clause 23, page 15, line 41, leave out ‘thinks’ and insert ‘believes’.
No. 71, in clause 24, page 16, line 7, leave out ‘thinks’ and insert ‘has reason to suspect’.
No. 102, in schedule 4, page 50, line 40, leave out ‘thinks’ and insert ‘has reason to believe’.
No. 103, in schedule 4, page 50, line 44, leave out ‘thinks’ and insert ‘has reason to believe’.
No. 72, in clause 26, page 16, line 24, leave out ‘thinks’ and insert ‘has reason to suspect’.
No. 73, in clause 26, page 16, line 33, leave out ‘thinks’ and insert ‘has reason to suspect’.
No. 74, in clause 26, page 16, line 39, leave out ‘thinks’ and insert ‘believes’.
No. 75, in clause 27, page 17, line 34, leave out ‘thinks’ and insert ‘has reason to suspect’.
No. 32, in clause 27, page 17, line 39, after ‘is’, insert 
‘that there are reasonable grounds to suspect’.
No. 76, in clause 28, page 18, line 30, leave out ‘thinks’ and insert ‘believes’.
No. 34, in clause 28, page 18, line 35, after ‘is’, insert 
‘that there are reasonable grounds to suspect’.
No. 77, in clause 31, page 20, line 5, leave out ‘think’ and insert ‘has reason to suspect’.
No. 36, in clause 31, page 20, line 11, after ‘is’, insert 
‘that there are reasonable grounds to suspect’.
No. 78, in clause 31, page 20, line 17, leave out ‘think’ and insert ‘believes’.
No. 79, in clause 31, page 20, line 27, leave out ‘think’ and insert ‘has reason to suspect’.
No. 80, in clause 32, page 20, line 37, leave out ‘thinks’ and insert ‘believes’.
No. 81, in clause 33, page 21, line 6, leave out ‘thinks’ and insert ‘has reason to suspect’.
No. 38, in clause 33, page 21, line 12, after ‘is’, insert 
‘that there are reasonable grounds to suspect’.
No. 82, in clause 33, page 21, line 18, leave out ‘thinks’ and insert ‘has reason to suspect’.
No. 83, in clause 33, page 21, line 28, leave out ‘thinks’ and insert ‘has reason to suspect’.
No. 84, in clause 35, page 22, line 4, leave out ‘thinks’ and insert ‘has reason to suspect’.
No. 85, in clause 35, page 22, line 17, leave out ‘thinks’ and insert ‘has reason to suspect’.
No. 86, in clause 36, page 24, line 7, leave out ‘thinks’ and insert ‘has reason to suspect’.
No. 40, in clause 36, page 24, line 14, after ‘is’, insert 
‘that there are reasonable grounds to suspect’.
No. 87, in clause 36, page 24, line 20, leave out ‘thinks’ and insert ‘has reason to suspect’.
No. 88, in clause 36, page 24, line 28, leave out ‘thinks’ and insert ‘has reason to suspect’.
No. 89, in clause 37, page 25, line 9, leave out ‘thinks’ and insert ‘has reason to suspect’.

Maria Miller: The group appears intimidating, but the amendments in fact relate to similar issues at various points in the Bill. To try to ease discussion and make the Minister’s response a little, I have clustered them together with regard to the issues to which they relate. Before I go into the detail, I think it important to recognise that discussing these amendments, which are all to do with the thresholds at which decisions are made, gets to the heart of one of the issues that the Bill is supposed to address. Again, it was a key issue in the Bichard report: inconsistent decisions were being made by many different groups as a result of a lack of understanding and clarity about what the processes and procedures were. In particular, inconsistent decisions were made by employers about whom they employed, and there were inconsistencies between lists that were held which barred people from various activities and inconsistencies of police disclosures between authorities.
The Government have done a great deal to try to ease some of those issues through measures that fall outside this Bill. As I said earlier, we cannot view it in isolation. I applaud the Government for the work that they have done to date in attempting to address a number of the considerable concerns that Bichard voiced. The key to the Bill, and to our discussion on this group, is to ensure that it does not create more problems than it solves in terms of inconsistencies and clarity. The language used in the Bill is at best unclear. It is certainly not readily understood either by the layman or by the legal expert.
Can more be done to make the Bill’s intention clearer? I think a great deal can be done, and whether the Minister and the Government choose to do it in or out of Committee is immaterial. Clarity is needed. The amendments hopefully give some idea of how it could be achieved.
First, I shall set out the types of decisions that the amendments deal with. If I did not, reading a list of numbers would be unintelligible. The Bill contains a hierarchy of decisions that have to be made. There is a decision to bar somebody because of actions that they have taken and that have been judged elsewhere, possibly in a court. There is a decision to bar somebody as a result of the behaviour that they have undertaken. There is a decision to refer somebody, again because of actions that they have undertaken. There are activities by the IBB, and there are actions in terms of disclosure of information. A number of different actions are in the Bill, and the threshold for each should be different, because the consequences of the actions taken are very different.
Let us be clear that nobody in this room today would want the thresholds included in the Bill for these actions to be a deterrent to referral for inappropriate behaviour that should lead to barring. That is not the intention of the amendments, and I must make that clear. Indeed, I believe that it has been agreed in discussions in the other place to include a clause about any malicious actions that are taken. I am therefore not as concerned that the thresholds need to be a deterrent for malicious allegations, as that they should be a guide to those who have to make the law work.
The thresholds also need to be proportionate and transparent, and engender trust among those who are being monitored. Currently, the language is unclear and does not use clear, known, legal principles. As I said during the debate on clause 1, there is considerable concern that the thresholds as expressed in no way match those that are used by the Care Standards Tribunal, which is the body to which the IBB will refer appeals.
I should like to press the Minister again on that point. If somebody is found to be barred by the IBB because they appear to have undertaken a certain activity, they will be able to refer to the Care Standards Tribunal, which will, I presume, use its current practice of employing the civil standard, which involves a balance of probabilities. I am sure that the Minister does not need me to point out to him the inconsistency in that. I am not entirely sure how that process will work. Again, perhaps the Government intend to use the civil standard for the barring process, but that is not specified in the Bill. It is important that we know what standard will be used, because we do not want the thresholds to be a deterrent, but we do need to ensure that they are proportionate to the actions that are being taken.
Thresholds that need to be defined fall into the categories that I have detailed. On inclusion on the barred list, schedule 2 states that
“if it appears to the Secretary of State”
that a person has undertaken an activity that leads to automatic barring, they should be barred. Amendments Nos. 11 and 20 refer to that. Inclusion on the barred list that is subject to representation has a similar style to it. The risk of harm test also comes down to whether it appears that a person will cause harm to a child or a vulnerable adult—that is the threshold.
Perhaps the Minister can clarify what is meant by the word “appears”. It is not a transparent word, so perhaps he could explain how it will be taken as a robust measure of the activities that have been undertaken. The word is certainly not one that those whom we have consulted on the legal side of things understand clearly. Does the Minister feel that the meaning will be as clear and unambiguous as it needs to be? Does the word sit well alongside the measures used by other regulators—particularly the Care Standards Tribunal—to which we need to pay attention? We need to consider those issues, so I would appreciate the Minister’s response.
Amendments Nos. 75 and 77 to 79 deal with the duty to refer. The consequences of being referred are not as momentous as those of being barred, but there needs to be further consideration of what threshold should be adopted. Currently, the regulated activity providers have a duty to refer if they think that an individual has done something or behaved in a way that would lead them to be considered for barring. Local authorities also have a duty to refer if they think that an individual has done something or behaved in a way that could them to being considered for barring. Does the Minister really feel that the word “thinks” provides an open, transparent and objective measure of activity that has been undertaken? I reiterate that I understand the desire not to use thresholds as a way of deterring people from being referred. That is important, but neither I nor my hon. Friends are convinced that the word “thinks” is the clearest that could be used in this instance.
How will organisations respond to how this part of the legislation is written? We are dealing with allegations about activities potentially to do with the safety of young children, so the issue is very sensitive. Will organisations be led to react in a way other than how the Government intended? I am concerned that their reaction would not necessarily be to do with concern for a child or vulnerable adult, but could arise out of concern that they might break the law if they did not put forward a piece of information.
The duty to refer is an important part of the Bill, and I understand that we do not want a threshold that would stop people from putting information forward. However, the wording that we have put forward in place of “think”—“reason to suspect”—is more in line with legal terms currently in play, and I hope would be more readily understood by organisations. It is also the lowest possible legally recognisable threshold, so I hope that it will not be criticised for being unduly onerous. In fact, it gives a basis on which information can be put forward and, hopefully, does not run the risk of deterring anybody from referring individuals about whom they are concerned. I shall be interested to hear the Minister’s response to that point.
Amendment Nos. 91 to 93 refer to the operation of the independent barring board, and it is worth considering them. I feel, and I am sure that the Minister will agree, that openness and transparency in how the board works is vital, yet the language in the Bill about how the board will operate is, at best, vague. The amendments attempt to ensure a little more openness and transparency in how the board will work. The Bill may use new parliamentary language, but it is not helpful to those with legal minds. I am not legally minded myself, but I take the advice of those who are. 
The IBB is to undertake activities that it “thinks” are correct in respect of compensation, staff, gifts and loans. The word “thinks” smacks not of objectivity, but of subjectivity. Our amendment would change “thinks” to “believes” and put the IBB on a far more stable footing. Again, amendment No. 62 would change “thinks”, in respect of the actions of the Secretary of State, into “believes”—and again, that would lead to a more objective measure. Amendment No. 101 is similar.
I move on to the most important part of this set of amendments—the behaviour that would lead to barring. I draw the Committee’s attention particularly to amendments Nos. 14 and 42. They are important because when an individual is considered for automatic inclusion, or inclusion subject to representation, they will, for the most part, have undertaken an activity for which they have been found guilty by another body. However, the other way of getting barred is through behaviour. By definition, that issue will be far more important to get right, because it will often involve soft data. It will certainly not involve data that would necessarily stand up in a court of criminal law, so it is important that we have a clear idea of what the IBB will do in terms of the threshold for barring based on a particular sort of behaviour.
Again, we have not proposed an amendment that would unduly raise the threshold to a level that would cause concern or deter people. We would merely change the word “appears” to something that would be more appropriate and understandable and perhaps provide more of a basis. I am referring to the concept of reasonable suspicion. As the Minister will know, that is the lowest standard of proof available to us legally.
We have had a great deal of debate on this issue and we are concerned that there will be a discrepancy with the Care Standards Tribunal’s way of working, which is based on the balance of probabilities. For that tribunal, people must be more than 50 per cent. sure that someone has undertaken an activity. With the amendment, we are proposing something that does not fit with that. We are saying that someone has only to have reasonable suspicion in order for a person to be put forward for barring. There is an inconsistency in that respect, but I can thoroughly understand the need to err on the side of caution. However, can the Minister say how in practice the differences will be ironed out, because someone, at some point in time, will have to deal with the inconsistency?
The final area that needs clarification concerns the disclosure of information—when someone should or should not disclose information. I draw the Committee’s attention in particular to amendment No. 99, which relates to the police’s ability to withhold information if they think that it is not in the interests of preventing crime to release that information. Under the Bill, we are saying that the only threshold that the police force needs to satisfy is that it “thinks” that it is not in the interests of preventing crime to release the information. “Thinks” is such a vague term. There have been problems in the past with inconsistencies in relation to releasing data and the way in which the police deal with data. We have to learn from that experience and put in place a measure that is far more readily understandable and, we hope, will be far more consistently applied.
The rationale behind this string of amendments is clear. At some stage, someone will have to make a decision on whether an individual is barred, either because they have done something for which they have been convicted, or because they have undertaken an activity that is deemed to be inappropriate and therefore they are eligible for barring. We cannot sidestep that issue; we must face it head-on. The Government have clearly chosen not to deal with it directly in the Bill, which I am surprised at, given the level of debate on these issues. This is not a debate on which standard or threshold should apply. It is about the fact that a threshold is needed in the measure and it needs to be consistent, clearly communicated and actionable. At the moment, the Bill is not clear and therefore perhaps not easily actionable by those who will have to deal with it.

Annette Brooke: We have a great deal of sympathy with the comments of the hon. Member for Basingstoke, in that the terms “thinks” and “appears” do not provide a sound basis on which one could make a judgment or, indeed, make representations against a judgment, which is quite an important aspect of the Bill. We shall therefore be interested in what the Minister has to say about the lack of precision. That is the real concern. We all agree with the principles, but there is a lack of real understanding of what is meant.
With regard to amendments Nos. 91 and 92, paragraph 13(1)(d) of the schedule refers to
“such other things as IBB thinks necessary or expedient.”
We Liberal Democrats question whether a board as a collective or a corporate body thinks. It is not applicable for “believe” to be used either, in so far as there is more clarity concerning the Secretary of State. We are sure that the Secretary of State does think, but we are not sure that the independent barring board should be said to think. We are concerned, beyond what the hon. Member for Basingstoke mentioned, about paragraph 13 of the schedule.
I should like to know about the terms of the delegation mentioned in clauses 6 and 7 and whether the protocol involved will clearly be set out somewhere. We asked about that earlier but did not get a clear answer. If we accept that the board cannot deal with the decisions itself, what will be the terms of the delegation? Will those be clearly published?

Parmjit Dhanda: The amendments seek to make explicit provisions to require the IBB, the Secretary of State, the independent monitor, chief officers of police, local authorities, professional regulatory bodies, inspectorates, employment agencies and employers to have a reason or evidence before taking any action that they are obliged or have the power to take under the Bill.
As a general principle in relation to referrals, it is right that the IBB should be able to consider all information that is referred to it. To limit that in any way would limit the power of the IBB to make an informed barring decision. If information referred to the IBB is obviously false, spurious or insufficient to result in inclusion on a barred list, the intention is that it should not consider the information further than is necessary to establish that fact. There will be no detrimental effects on the person who is the subject of the referral. I hope that hon. Members will agree that it is better that the IBB should be able to consider the information, even if only to dismiss it immediately, rather than never being able to consider it all and risking missing a vital piece of information. In some cases, it is only as a result of many small pieces of information that a serious risk can be identified. That is the rationale behind the central and expert IBB. The hon. Member for Basingstoke answered her own question by saying that she wished to include the thresholds or legal words in the Bill, but did not want to deter people. She finds herself in the conundrum of doing one thing or the other.
Many of the amendments relating to the operation of the IBB do not make sense in that context. For example, amendments Nos. 11, 12, 21 and 22 would require the Secretary of State to have evidence that a person has committed an offence that would lead to automatic barring before he referred the matter to the IBB, rather than it appearing to him to be so. The commission of the offence will not be in doubt. The Secretary of State will know about it through criminal records, so no test that he has evidence that the offence has been committed is required in the Bill. I realise that that is complex and legalistic.

Maria Miller: Is the Minister saying that there is no requirement to have evidence? A certain group of people will be referred for barring based on activities that they have undertaken and for which they have been convicted. They will automatically be barred—or barring will at least be proposed—but they will be able to have representation. However, another group will be put forward for barring based on the sort of evidence that the Minister has been speaking about—information that is gathered together, which is colloquially known as soft evidence or soft data. Is he saying that there will not be a standard of proof for that data? How will the IBB assess it?

Parmjit Dhanda: The hon. Lady is probably aware that there are four ways to be barred. First, the automatic bar, without the right to make representations, is for the most serious crimes—for example, the rape of a child under the age of 13. In the second, people can be barred because they have committed crimes, but less serious ones, and they have a right to make representations. The third is the discretionary bar—perhaps Ian Huntley could have been subjected to one—when evidence has amassed over time and referrals have been made to the IBB. If it judges the evidence—I shall speak in a moment about judging evidence—it can choose to place a bar on that individual. The fourth can be imposed because of the risk of future harm, which we shall come to later in the Bill; a person can be barred because the IBB has decided that there is a danger that someone will commit harm to a child in future. That can be decided, for example, on the back of a psychiatrist’s report. In all those cases, however, the priority, first and foremost, is the child or vulnerable adult, and erring on the side of caution.
The hon. Lady asked fair questions about the standard of proof or evidence. The IBB is the decision-making body. As I said earlier, the Care Standards Tribunal hears appeals on points of fact and law. The burden of proof for the tribunal and the IBB is the same. However, their respective roles are different. In determining appeals, the tribunal uses the civil standard of proof—the balance of probability.

Maria Miller: I thank the Minister for that enlightening reply. Although I have read all the debates in the Lords, this is the first that I have heard of that. I am not aware of it having been spoken of before. If it requires the civil standard of proof, why not state it in the Bill? It is not something that will be pored over only by lawyers. All members of the Committee who are school governors will need to know what it says. Those who run voluntary organisations will need to know. If the standard of proof required for soft evidence is the balance of probabilities, it will be jolly useful to have it stated in the Bill.

Parmjit Dhanda: I will have to come back to the hon. Lady on that, but I believe that a provision on the balance of probabilities may well be in the Bill.

Maria Miller: It is not.

Parmjit Dhanda: I will take the hon. Lady’s point on that. However, the decisions will be made by the independent barring board, and experts will have to make a judgment on the circumstances and form opinions on them. Yes, they will have to consider the burden of proof, but it is only common sense to expect them to use the balance of probabilities when considering that evidence.
I shall continue with the amendments. They are unnecessary in drafting terms, as Parliament imposes an obligation on, or gives a power to, a person to do something that arises only if he thinks that something is the case. Parliament does not intend that the obligation should arise, or that the power should be exercised, on the basis of a thought that is unreasonable. It is implied that any view that a person must form as a precondition for a power of duty to arise must be a reasonable one. That means that there is a reason to form the view, or evidence to that effect. Having given that reassurance, it may be useful if I address some of the concerns that may lie behind the amendments relating to referrals to the IBB.
Amendments Nos. 32 and 34 modify the harm test, so that an employer or personnel supplier must have “reasonable grounds to suspect” that the harm test has been satisfied, rather than “thinking” that it has been satisfied, before the employer falls under a duty to refer relevant information to the IBB about the person whom the employer has dismissed, or who resigned before he could be dismissed. The harm test is that a person may harm, attempt to harm or incite another person to harm a child or vulnerable adult. Amendments Nos. 32 and 34 appear to add nothing to amendments Nos. 75 and 76, which would require the grounds for all obligatory referrals to the IBB, including those referrals made as a result of satisfying the harm test, to be based on a reason to suspect.
Amendments Nos. 75 and 76 would have no practical effect on referrals from employers and employment agencies to the IBB. That is for two reasons. The first is that, in order to refer to the IBB, an employer or employment agency will need to have information on the basis of which they think that the conditions for the duty to refer the information have been satisfied. The information to be referred will be prescribed in secondary legislation and may include name and address details, details of the behaviour engaged in by the subject of the referral, other relevant documents, including medical or psychological reports, and details of any disciplinary hearings. In practice, that information must include the evidence on the basis of which the employer or employment agency thinks that the conditions for the duty to refer have been satisfied. In another place, the Government have already committed themselves to issuing guidance to employers on the thresholds for the duty to refer information to the IBB, including on interpreting the harm test.

Maria Miller: It is great progress to know that, in order to be referred for barring, a person needs to have passed the civil standard. I just want to make sure that I am absolutely clear on the subject. I know that it is a complex matter, but it is what we are here to debate. On the harm test and the duty to refer, will employers be asked—presumably in codes of practice—to use the civil standard, too? Is the Minister rejecting my amendments because they are not strident enough, and because “reasons to suspect grounds” is a lower burden of proof, or is he rejecting them for some other reason? I am not quite clear on that.

Parmjit Dhanda: Let me make it clear: I am not talking about a civil standard of proof having to be met before people can make referrals, as I said early on. That is for reasons that the hon. Lady gave herself: we do not wish to deter people from providing evidence. It is up to the IBB to decide whether to accept that evidence, whether the evidence is spurious, or whether it should disregard the evidence. Piece by piece, that evidence might in future be relevant to the IBB in making a decision. We are not setting a standard that has to be met by those who refer before putting forward that information. It is up to the IBB to judge on a case-by-case basis, as I made clear. The hon. Lady alluded to that herself earlier.
It is important to remember that a condition of the duty to refer arising in relation to employers is that the employer must have dismissed the individual, or have intended to dismiss him had he not left the employer’s employment. I think that that already sets a high threshold before the employer refers the case to the IBB.
The second reason that amendments Nos. 75 and 76 add nothing to the Bill is that a person acting as a private citizen, including an employer or employment agency, already has the ability to make a referral to the IBB, which may then consider the information and decide whether to include a person on the barred list, according to the procedures set out in the Bill. Let us imagine a hypothetical situation in which an employer or employment agency thinks, without a reason or reasonable grounds, that the conditions necessary to trigger a duty to refer information to the IBB have been met. Even under amendments Nos. 75 and 76, the employer or employment agency would still have the ability to make the referral.

Maria Miller: This will my last question on the issue; it is important that we get this clear. The duty to refer is an important duty on local authorities and other such organisations and on third parties that will have to undertake an awful lot of work. They need clarity and will read what is said in Committee to ensure that they do their jobs right. The Minister said that they do not refer on a balance of probability, because they have reason to suspect or because they have reasonable grounds, and that for some reason using the word “thinks” is different from the three accepted ways of analysing a situation. Will he expand on why that is different from specifying “reasonable grounds”? It is not a word with which legal departments in local authorities are used to dealing.

Parmjit Dhanda: It is different for the reasons explained by me and others in our debate about over-legalistic language. People understand the term “thinks” in its normal sense as well as they understand “reasonable thought”. [Interruption.] Obviously, I have not totally reassured hon. Members on that point, but I do not feel that making changes and adopting the terms that the hon. Lady has proposed will help to safeguard children or vulnerable adults. It might even do the opposite and deter people from referring information to the IBB.

Sarah Teather: May I test what I think that the Minister is saying, then perhaps he can explain whether I have got it right? I believe that he is saying that anybody who thinks that there might be a problem has the ability to refer, but they have a duty to refer only if they are about to dismiss, or have dismissed, the person concerned. Is that correct?

Parmjit Dhanda: Yes. There is a difference between a duty to refer in those circumstances and an ability, as is laid out later in the Bill. As the hon. Member for Mid-Dorset and North Poole mentioned, we will talk later about that duty to refer. The hon. Lady will see that clause 27 and related clauses will bring us to that specific issue and that there is a duty to refer. She is right, however, about the meaning of “thinks”. My view is that changing the term to a more legalistic one would not assist the safeguarding of vulnerable adults and children.

Maria Miller: I am sorry, but I have broken my promise—I have one further point to raise. My point relates directly to inclusion on the barred list and the much more serious situations in which somebody has undertaken an activity that may result in their being considered for inclusion. I have a note to remind myself that there was a Department for Education and Skills note about that matter in April. It talks about reasonable doubt, which is the only place I have found that reference. Will the Minister take this opportunity to clarify whether those included on the barred list, either through automatic inclusion or following representation, will be measured by reasonable doubt? The notice dated April talked about reasonable doubt in those situations. Would that be yet another threshold that he implicitly assumes will be there?

Parmjit Dhanda: Let me provide a bit of clarity. There are two forms of auto-bar. One is for the most serious crimes, such as child rape and robbery. If someone has been through the legal process and been found guilty, there is little reasonable doubt about it. The other process is where a person has committed a crime or accepted a caution and the IBB has informed them that they are barred from working with vulnerable children or adults. In such cases, they have a right to make representations. That is the difference, regardless of terminology. With all that considered and taken on board, I hope that the hon. Lady will withdraw the amendment.

Maria Miller: This has been an enlightening discussion that it was important to hold. As I said in my introductory remarks, the Bill contains a number of thresholds that have to be considered. At present, because of the language used, it is unclear what standard of proof is required for each different process. The Minister has gone some way to clarifying some of the processes, but I remain concerned that this is a Bill that people must interpret. Back in my office, I have four lever-arch files of letters from Lord Adonis and notes from the DFES about how the Bill is to be interpreted.
We heard earlier from one of the Liberal spokesmen about the lack of clarity in educational establishments over which regulations are in force and which bits of paper have overridden others. I am concerned that before the Bill has even passed through this place parts of it are being given meaning in additional notes, without that meaning being enshrined in the Bill. I understand that in the real world we need to ensure that the pieces of legislation we pass can evolve and develop in accordance with the situations we find ourselves in.
I am not trying to fetter the IBB’s activities by putting forward my amendments, but the ambiguity in the Bill is not as necessary as I first thought. It appears that the Government have gone a long way in their thinking about how terms are to be interpreted. I am pleased that there is not a discrepancy between the Care Standards Tribunal’s standard of proof and the standard that will be employed by the IBB. But I and several lawyers read the Bill and did not pick that up. That is of deep concern.
I urge the Minister to consider whether amendments, perhaps on Report, would be of benefit, not so that we can feel that our arguments have been heard but for the far more practical reason that people may understand what they are supposed to be doing. We could then hold the relevant bodies to account to ensure that they are doing what they should be.
The wording that I have suggested, particularly with regard to inclusion on the barred list, is an awful lot less burdensome than the language that the Minister says should be there. I fought shy of putting the civil standard forward as the burden of proof because I felt, clearly wrongly, that one would be criticised for putting forward a burden of proof that was quite difficult to attain. Clearly that is in the Minister’s mind. Perhaps it should now be more clearly articulated in the Bill because it is an important point that needs to be clarified.

Parmjit Dhanda: I think the hon. Lady may be confusing the way in which the IBB will make its decisions and the burden of proof there with the nature of the referrals. That is part of what is causing the confusion because the referral will be up to individuals and what they think. We have to make that quite clear. That relates to the hon. Lady’s earlier points about not wanting to deter people from making such referrals.

Maria Miller: I thank the Minister for that clarification. As he said, there is a difference between the burden of proof required for referral and that required for barring. He has made it clear that the burden of proof required for barring is at least the civil standard and that in the case of those who are automatically included the burden will, almost by definition, be one of proof beyond reasonable doubt. That is why I picked that up in a DFES note on the issue. However, I feel that inclusion in the Bill should be considered so that others are not as confused as I and other hon. Members have been.
I remain somewhat concerned about the looseness of the language on the duty to refer, and the Minister has decided not to clarify it any further. Our amendments were entirely reasonable and were based on a good deal of thought and discussion. People in a great many organisations will be left in a difficult position in trying to interpret what is meant by such a subjective word as “thinks” and I urge the Minister to consider how it will be clarified. The ambiguity is the cause of many of the problems that we currently face and a principal reason why the Bill is before us. It is not just I and other hon. Members who have made that observation—a number of organisations in the statutory and voluntary sectors are concerned about the point, and I feel that the Minister should take heed.
However, given that we have had such a good discussion of the issues, we Conservatives are happy not to press the amendments for the time being so that the Minister may have the opportunity to consider how the concerns shared by many people can be addressed in later stages of the Bill’s passage. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 1 agreed to.

Clause 2

barred lists

Question proposed,That the clause stand part of the Bill.

Annette Brooke: I want to address one issue, an aspect considered in the December consultation. It is whether the IBB will have to provide employers with a summary of the reasons for including an individual on one of the barred lists. It is fairly clear, and it was implied in the early consultation, that employers will probably have to carry out a full risk assessment if they employ somebody, and they will need such relevant information. For example, if someone was barred from carrying out regulated activity work but was able to carry out controlled activity, the employer would know the situations that would carry more risk and could put measures in place to minimise risks.
That may be what is intended, but I am not sure that it is said anywhere, despite its being clearly referred to on page 4 of the December consultation. The suggestion was that to equip employers to make such determinations
“we are considering providing them with a summary of the reasons for a barring decision.”
What stage are we at with that consideration? On page 12 of the same document, one of the questions was on that very issue. If the information were provided, a supplementary question asked:
“Would this help those employing individuals in positions not covered by the bar to make a judgement whether to employ the individual with appropriate safeguards in place?”
A lot of issues were raised that have not been followed through in this part of the Bill.

Parmjit Dhanda: Before I come to that point, let me make a couple of brief comments about clause 2. The clause requires the IBB to establish and maintain two barred lists: one that includes those barred from working with children, and another that includes those barred from working with vulnerable adults. The two lists relate to two distinct work forces. In some cases an individual will pose a risk to both groups, but that will not be true in every case. Where there is evidence of a risk only to a specific group, we cannot justify barring the individual from a much wider work force. Were the lists combined, they would cover upwards of 7 million jobs, which clearly raises the issue of whether a bar would be appropriate and fair in all cases.
Schedule 2 makes provision for determining whether a person should be included in the lists. The barred lists are necessary to maintain a record of those who are known to pose a risk to vulnerable groups. They replace the current schemes. POCA, List 99 and the disqualification order regime will be replaced by the children’s barred list, while POVA will be replaced by the vulnerable adults’ barred list.
Part 3 of schedule 2 provides supplementary provisions for the barring scheme, including procedures, representations and information gathering. The barred lists are an integral part of the scheme and will provide greater safeguards for children and vulnerable adults.
On the hon. Lady’s point about a controlled activity, I can confirm that an employer who is allowed to employ someone who is barred for a controlled activity will be given further information to ensure that they can put in place the necessary safeguards.

Question put and agreed to.

Clause 2 ordered to stand part of the Bill.

Schedule 2

Barred Lists

Maria Miller: I beg to move amendment No. 121, in schedule 2, page 35, line 13, leave out sub-paragraph (3) and insert—
‘(3) Referrals made by the Secretary of State under this paragraph will be subject to scrutiny by IBB prior to automatic inclusion of an individual on the barred list.’.

Derek Conway: With this it will be convenient to discuss the following amendments: No. 120, in schedule 2, page 35, line 14, at end insert—
‘1A (1) This paragraph applies to the decision-making process of IBB.
(2) IBB must refer to a code of practice, to be issued by regulations, prior to including an individual on the barred list.
(3) For the purpose of sub-paragraph (2), a code of practice is—
(a) that which is issued by the Secretary of State by regulation, subject to the affirmative resolution procedure,
(b) composed after consultation with senior representatives from—
(i) the police service;
(ii) the probation service;
(iii) the Child Protection Service; and
(iv) the Crown Prosecution Service.’.
No. 133, in schedule 2, page 35, line 14, at end insert—
‘1A (4) IBB cannot include a person under the age of 18 in the children’s barred list without the right to representations.
(5) IBB must make a referral for therapeutic services, as specified in regulations, for a person under the age of 18 included on the children’s barred list after representations have been heard.’.
No. 122, in schedule 2, page 37, line 8, leave out sub-paragraph (3) and insert—
‘(3) Referrals made by the Secretary of State under this paragraph will be subject to scrutiny by IBB prior to automatic inclusion of an individual on the barred list.’.
No. 123, in schedule 2, page 37, line 9, at end insert—
‘6A (1) This paragraph applies to the decision-making process of the IBB.
(2) IBB must refer to a code of practice, to be issued by regulations, prior to including an individual on the barred list.
(3) For the purposes of sub-paragraph (2), a code of practice is—
(a) that which is issued by the Secretary of State by regulation, subject to the affirmative resolution procedure,
(b) composed after consultation with senior representatives from—
 (i) the police service;
 (ii) the probation service;
 (iii) the Child Protection Service; and
 (iv) the Crown Prosecution Service.’.
No. 134, in schedule 2, page 37, line 9, at end insert—
‘6A (1) IBB cannot include a person under the age of 18 in the adults’ barred list without the right to representations.
(2) IBB must make a referral for therapeutic services, as specified in regulations, for a person under the age of 18 included on the adults’ barred list after representations have been heard.’.

Maria Miller: The amendments in my name and those of my hon. Friends relate to schedule 2 and to scrutiny of the Secretary of State’s referrals to the IBB. I should be interested in the Minister’s response because the amendments also include provision for the IBB’s decision-making process to be defined in a code of practice. The issue was discussed in the other place, but given the importance of having clarity and transparency in these matters, it is important that we continue that debate in Committee.
The amendments are all about introducing greater transparency into the IBB’s decision-making process, which is vital if there is to be confidence in the system. The amendments are tabled in the same spirit as those tabled in the other place. They are probing amendments, which are meant to clarify the IBB’s processes and, I hope, thereby strengthen the system that the IBB puts in place.
Amendments Nos. 121 and 122 would ensure that referrals made by the Secretary of State were subject to the same scrutiny as referrals made by other individuals. Lord Adonis, the Minister in the other place, said that there would be little point in asking the IBB to consider whether someone referred to it for raping a 13-year-old girl should be barred. That is of course true, but there should be a process or safeguard to ensure that Secretary of State referrals are free from political interference or expediency. As the Minister has said and as the former Secretary of State, the right hon. Member for Bolton, West (Ruth Kelly), has attested, the point of the new scheme is to divorce the vetting and barring of individuals from the political process. The power of referral and the IBB’s status as a non-departmental public body, which we have discussed, will put at arm’s length Ministers’ control, but not remove it. Will the Minister reassure me on that matter?
Amendments Nos. 120 and 123 would establish a code of practice for the IBB. It is vital that the decision-making process for the new body be clearly spelt out and transparent to those who will be affected. I hope that that will ensure that the system is robust and has the full support of all those who need to support it if it is to be successful.

Annette Brooke: I specifically wish to speak to amendments Nos. 133 and 134, in my name and that of my hon. Friend the Member for Brent, East. I should say at the outset that I welcome the statement of the noble Lord Adonis in Grand Committee that under-18s will not automatically be barred from working with children without the right to representations. He said:
“There may be mitigating circumstances which mean that it will not be appropriate in every case to include young people who commit offences on a barred list without the right to make representations... He or she may not present a risk of harm to children in general and therefore may not be an appropriate person to automatically be included on the children's barred list.”—[Official Report, House of Lords, 2 May 2006; Vol. 681, c. GC187.]
He went on to give more detail on the issue. I note that in the recent pack of information circulated by the Minister the point about under-18s is reiterated. We are pleased about that, but I wish to push the matter a little further. Why cannot such a commitment be put into the Bill? Amendment No. 133 is partly intended to translate what has been agreed—probably not into the correct language—and to put it into the Bill.
The amendment has a second important strand. It seems to me that there is an opportunity, without imposing a great deal of work on the IBB, to have an automatic referral to therapeutic treatment. That should certainly be the case if somebody under 18 were placed on the barred list after representations were heard. There may be a case even if a person has not been put on the barred list, but for simplicity I have gone for the stronger case.
The issue of young people who sexually harm has been highlighted in many reports, but there has not been uniform action across the whole country. From the experience of the National Society for the Prevention of Cruelty to Children, we know that local authorities often take very different approaches to their work. It is difficult to know what sexual behaviour is harmless. Many children engage in activities that form a normal part of their sexual development. There is a range of sexual behaviour among young people, from an extreme multiple rape case to mutually agreed experimentation. I understand that juveniles commit almost one quarter of all sexual offences. The evidence is that many of those children have themselves suffered from sexual abuse or some form of trauma. Indeed, domestic violence is often a trigger. That is why it is so important not just to acknowledge the differences surrounding the under-18s because of the complexity of their behaviour, but to provide a direct link to specialist services.
I carefully wrote the amendment and included “as specified in regulations”. I thought that that would be the most straightforward wording. It would not be the duty of the IBB to seek out the treatment. Its duty would be to set up the process such that a direct referral was made and treatment received. We know that treatment of young people can be successful. If we want to make inroads into society’s problems, making treatment available at the appropriate time for young people will prevent the incredibly sad consequences of such behaviour escalating to great proportions and eventually ending up in several people being injured.
I hope that the Minister will give serious consideration to the amendment, as it picks up on an important point and campaign. We must ensure that young people in that position are referred to the appropriate services and treatment.
I have a great deal of sympathy with the amendments of the hon. Member for Basingstoke.

Parmjit Dhanda: In speaking to amendment No. 121, I shall address amendments Nos. 120, 122, 123, 133 and 134 as well. Amendments Nos. 121 and 122 deal with the process for automatic barring and would make it subject to consideration by the IBB. The role of the IBB is not to exercise any discretion in deciding whether to bar a person who has been referred by the Secretary of State. If the Secretary of State is satisfied that the prescribed criteria apply, he must refer the individual to the IBB, which must include the person on the list. There is no useful purpose to be served by asking the IBB to consider whether someone who has been convicted of one of the offences—for example, rape of a child—should be barred. We are clear that barring should automatically follow the conviction.

Sarah Teather: Has any consideration been given to what would happen if there were an administrative error at some point in the process of referral? Obviously, there is no appeal process, so what would happen if somebody were included by mistake on the barred list?

Parmjit Dhanda: Information will go to the IBB via the courts and Criminal Records Bureau process and will indicate that somebody had already been convicted. The hon. Lady proposes an interesting set of circumstances that I cannot envisage arising. I am happy to write to her, but it would be highly irregular were that situation to occur.
Amendments Nos. 120 and 123 propose a code of practice for the IBB in taking its barring decisions. They appear to be intended to ensure that broadly the decision-making processes of the IBB are specified in a code of practice, and that the code is subject to consultation. Criteria would be prescribed for automatic inclusion in the list.
The criteria that may be prescribed are set out in paragraph 19 of schedule 2 and include cautions and convictions for certain offences, inclusion on an overseas list or being subject to an overseas order or direction. Following consultation, the offences will be included in regulations subject to the affirmative resolution procedure, as I believe was made clear in another place. Automatic barring without the right to make representations will result from the most serious sexual offences against children and vulnerable adults, such as rape, sexual assault of a child under 13 in the case of the children’s barred list, or inducement, threat or deception to procure sexual activity with a person with a mental disorder in the case of the adult’s barred list.

It being One o’clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at Four o’clock.